Electoral law must prohibit state officials' public statements threatening
free and fair electionsZimbabwe
Election Support Network
September 26, 2011

Elections in
Zimbabwe have always been marred by acts of violence and intimidation.
As far back as 1980, when Zimbabwe held its first democratic elections,
there were complaints of violence and intimidation. At the time,
the euphoria brought by independence overshadowed the violence that
had taken place. Although the elections were passed as free and
fair, the benefit of hindsight shows that it set a bad precedent
which would be repeated in future elections. Violence and intimidation
have almost become part of the country's political culture.
Elections have become synonymous with violence. This is not right.

As the world
witnessed in the run-up to the Presidential Run-Off election between
March
and June 2008, violence claimed many limbs, lives and property
causing untold suffering amongst ordinary people. In the end, violence
and intimidation meant the process and result of that election became
severely compromised. The legitimacy of the result was contested
and could not be sustained and without any viable option, the political
parties ended up negotiating a power-sharing deal under which the
country is currently governed. There can be no doubt, however, that
if any future election is to have legitimacy and universal acceptance,
the cancerous strain of violence and intimidation must be removed.

It is important
to critically assess how the proposed reforms to the electoral laws
attempt to deal with this problem and to determine their strengths
and weaknesses.

Code
of Conduct

The measures
against politically-motivated violence include a code of conduct
set out in a schedule of the Electoral
Act, with which all political parties and candidates in an election
are expected to abide. The proposals place responsibility on political
parties and candidates contesting an election to take steps to prevent
politically-motivated violence and intimidation.

ZESN recommends
however, the necessity of setting out clearly the legal consequences
of any failure to comply with the code of conduct. There must be
specific sanctions which detail the effect of any breaches of that
code of conduct on the legality of the election. A critical question
would be whether a breach of the code of conduct affects the legality
of the election. At what point does politically-motivated violence
and intimidation affect the legality of the election? A code of
conduct without specific legal sanctions that go to the core of
the election's legality can be easily flouted.

Special
Structures Dealing with Political Violence

The proposals
also include a fairly elaborate architecture of policing, investigating
and prosecuting offenders accused of committing acts of violence
and intimidation.

This includes
the appointment of a special police liaison officer and special
investigations committee for each province which together will be
specifically responsible for the expeditious investigation of cases
of politically-motivated violence or intimidation within each province.
The appointment of the SPLO will be done by the Police Commissioner
General "in consultation with" the Zimbabwe Human Rights
Commission (ZHRC), the constitutional body which oversees the protection
of human rights. If the spirit of this clause is upheld, it could
mean a more inclusive appointment process, which in theory may prevent
partisanship. The SIC will be chaired by a person representing the
ZHRC and will consist of the special police liaison officer for
the relevant province, two representatives of each political party
taking part in the election. The SIC will direct the special police
liaison officer to investigate cases of politically-motivated violence
and intimidation during election periods and may also take on a
hands-on role in the investigations.

This multi-party
body would in theory be inclusive and therefore work collectively
to deal with violent activity. Further, the Commission may, following
an investigation by the SIC, warn persons accused of violence or
refer the matter for prosecution by a special prosecutor designated
for the purpose by the Attorney-General. They will be prosecuted
before a special magistrate designated by the Judicial Service Commission.
There is also provision for the creation of special police units
to carry out expeditious investigations. What we have set out above
is the theoretical framework as envisaged in the proposed legislation.
On a quick glance, it would appear, in theory, to be a fairly robust
legal structure for curbing and dealing with politically motivated
violence and intimidation during elections. Indeed, if everything
were equal, the mechanisms set up might be expected to yield desirable
results. The problem, however, is that the theoretical framework
has to be implemented by human agents whose weaknesses may derail
an otherwise noble cause. Experience has shown that it is not enough
to have beautiful laws designed to curb violence. Those laws need
to be complemented by professionally independent human agents charged
with implementing those laws. The structure will therefore succeed
or fail depending on the attitude and conduct of the men and women
charged with ensuring the laws work.

Human
Factor

Now, although
the law requires that the SPLO is to be appointed by the Police
Commissioner General "in consultation with" the ZHRC,
there is no guarantee that the Commissioner General will not act
unilaterally. Indeed, we have already seen controversy over senior
government appointments, ambassadors, Governors, etc which have
been done unilaterally by ZANU PF to the chagrin of its partners
in the Inclusive
Government. Challenging those decisions will be time consuming
and even if successful the result may only be of academic importance
unless the courts decide on the matters expeditiously. Also, even
if the SIC brings matters to the AG's Office for prosecution,
there is no guarantee that all matters will be prosecuted. Indeed,
there is always the risk of selective application of the law so
that matters adverse to one political party may be swept under the
proverbial carpet. The AG will argue that the Constitution
obliges him not to be directed by any person in the execution of
his duties. Therefore much will turn on the integrity and professional
independence of the Attorney General.

Fit
and Proper Test

Yet, evidence
shows that holders of the offices of the Attorney General and the
Police Commissioner General have made no secret of their support
for and allegiance to ZANU PF, a key contestant in the elections.
As key players in the enforcement of electoral laws, holders of
these offices are expected to demonstrate impartiality and exercise
professional independence, regardless of their personal political
preferences. It is impossible to see how they can be regarded as
fit and proper persons to exercise the functions required of them
by the constitution. It is fair to say that persons of that calibre
are not fit for purpose.

Adverse
Public Statements

It is also against
this background that violence and intimidation must be read in the
widest sense to also include partisan use of office by senior state
officials (including, in particular, security officials) who have
constitutional duties to uphold the laws of the state. These prohibitions
should cover the making of public statements that are designed to
affect the outcome of an election or are made recklessly without
due regard to their negative impact on the election process. There
have been instances in the past when senior security personnel have
made statements to the effect that they would not salute certain
candidates even if they won an election. Such statements may have
affected voting decisions, causing fear and helplessness amongst
members of the public, especially because they are made by senior
officers of the uniformed forces in an atmosphere of violence and
intimidation which also often involves members of the security forces.
The law must regard such statements as acts of political violence
and intimidation which must be prohibited, with adverse consequences
upon those who make them.

Urgency

Finally, is
the public is to have confidence in these measures, justice must
be seen in action in real terms. This means matters must be brought
before the courts expeditiously and the courts must handle the matters
on an urgent basis, ensuring that cases are concluded without undue
delay. Perpetrators of offences must suffer consequences of their
actions during the relevant election period and the more this is
visible to the general public, the more it will inculcate a culture
of accountability and therefore build confidence in the system.
It may also deter would-be offenders.

Election observers
will have their work cut out. It is important to recognise that
in an environment such as that obtaining in Zimbabwe, when the country
has been in an almost permanent state of electioneering acts of
violence and intimidation take place in any given period. They do
escalate when elections are officially called but even now, before
elections have been called, acts of violence and intimidation have
been reported in various areas, including Mbare where regular 'mobilisation'
meetings are reportedly being held often under duress. The public
are on permanent alert in regards to elections. It is therefore
important that the 'election observation' process be
read more widely to include other periods even before official announcement
of the election season. Of particular significance is to keep a
watchful eye on the selective application of the law.

Conclusion

Overall, even
if the legal provisions have many admirable qualities, at the end
of the day, it is the human factor that will determine the success
or failure in preventing political violence and intimidation. For
as long as holders of offices responsible for acting against such
conduct do not exercise professional independence , the laws will
remain impotent against the scourge of violence and intimidation.
The ideal scenario would be a complete overhaul so that such offices
are populated by persons who have greater professional integrity
and independence. The best hope is that they can be compelled to
exercise greater professional independence and that laws be clear
on the impact of their failure to comply with those mandatory rules.